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Electronic Discovery

WHY I Do What I Do: eDiscovery Reflections

It’s a rare two post day for us here at eDiscovery Daily.  To check out the other post today, click here.

One of the things I like most about working at CloudNine is the company culture and one of the things that has been instrumental in defining and shaping our company culture is our company book club.  We’ve reviewed and discussed several books over time that have helped us define our core values and refine our mission statement (e.g., Good to Great, by Jim Collins).  We’ve also discussed how to strive to create an amazing experience for our clients (The Cult of the Customer, by Shep Hyken), which was one of the factors behind deciding to rename our company as “CloudNine” back in 2011 (as in putting our clients “on CloudNine”, get it?).

Earlier this week, we concluded reading and discussing the book Start with Why (by Simon Sinek) where he talks about starting with “WHY” we do what we do and how organizations (such as Apple, Harley Davidson and Southwest Airlines) that have established a clear “WHY” they do things have succeeded.  He even discussed how the leaders of those organizations had their respective “WHY” instilled in them early, such as Steve Jobs and Steve Wozniak, who grew up in Northern California during the Vietnam War era when young people rebelled against the idea of government control over their lives.  Sinek talks about how Jobs and Wozniak created Apple with an idea of giving power to the individual – a “WHY” which has enabled Apple to establish an almost cult-like loyalty by users of Apple products.

During book club discussion, we related the topic of “WHY” we do things back to our own company and what CloudNine is all about, which is to Simplify the Discovery Process.  That’s our mission statement and our CEO, Brad Jenkins, relayed a story about the first major project our company worked on – a 10,000 box scanning project with locations all over the country early in our company’s history (we were founded back in 2002 when large scanning projects were much more common).  Back then, the client wanted an easier way to retrieve images without having to resort to using hundreds of CDs, so that led to development of the original version of the CloudNine platform to simplify that process by enabling clients to retrieve those images online more effectively.

Simplifying the discovery process has been a continual emphasis over our 14 years of existence ever since and we do that through our discovery automation technology, our professional services and through education (via resources like this blog and webinars).

Reading books like Start with Why can be thought-provoking and discussing the book in book club got me thinking about WHY I do what I do and how it fits in with our company WHY.  What I realized is that my entire career (even my college education where I chose a management information systems concentration for my business degree from Baylor University, because I wanted to maximize the usefulness of information using technology) has been focused on simplifying processes and since the majority of my career has been in litigation support and eDiscovery, that focus has been directed toward simplifying the discovery process.

Here’s an example: Back in the late 80’s (yes, I am that old), I worked on a project where the team developed a Computer Assisted Retrieval system – for microfilm.  The client had millions of pages on microfilm cartridges and a database to track them all, but it was very cumbersome to locate and print each document image for production purposes.  The application that was developed was designed to take the list of documents retrieved from a search (which was exported to a list and then imported into the application), connect to an attached microfilm reader-printer, prompt the operator to insert the first microfilm cartridge and then print the selected images off of each cartridge. Each page on each microfilm cartridge had a mark and the application counted the marks as the reader printer advanced through the roll to locate the correct page(s) for printing.

The application was very cool for its time, when it worked (it could be a bit temperamental at times).  I even wrote an article about it back then, which was published in a legal tech newsletter (good luck finding a copy).  Regardless, it was instrumental in streamlining the process for retrieving documents retrieved by a database search for this particular client.

Over the years, I’ve provided a number of consulting, management and professional services to clients, all of which helped them simplify the discovery process in some way or another (admittedly, most of those projects weren’t as cool as the project I described above).  As a result of discussing our company “WHY” in book club, I realized that my own “WHY” has mirrored the company “WHY” – long before I joined the company 6 1/2 years ago (or even before the company was founded 14 years ago).

The holiday season can be a time for reflection and, as I reflect this holiday season, I consider myself lucky and blessed.  Lucky and blessed to enjoy doing what I do, lucky and blessed to work for a company whose mission statement reflects what I enjoy doing and have been doing for 25+ years.  Aside from that, I consider myself most lucky and blessed to have my wonderful wife Paige and our terrific kids Kiley and Carter in my life.

I hope each of you are lucky enough to have a job where you get to do what fits your “WHY” and blessed to have wonderful people in your lives and I thank each of you for reading our blog.  Happy Holidays from CloudNine and, as always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily is taking a break for the holidays and will return on Tuesday, January 3.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Missed the eDiscovery Business Confidence Webinar? Here is Where You Can Still Check it Out: eDiscovery Trends

It’s a rare two post day for us here at eDiscovery Daily.  To check out the other post today, click here.

On Wednesday, ACEDS hosted a webinar (sponsored by CloudNine) where we discussed results from the Fall 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  Did you miss it?  Here’s where you can still check it out.

During the one hour presentation and discussion led by ACEDS Executive Director Mary Mack and me, the expert panelists discussed the results of this quarterly survey, breaking down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends. Participants in the webinar included the following eDiscovery leaders:

  • George Socha, Co-Founder of EDRM and Managing Director at BDO Consulting;
  • Eric P. Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI;
  • Zach Warren, Editor in Chief of Legaltech News;
  • David Horrigan, E-Discovery Counsel and Legal Content Director at kCura;
  • Jennifer Johnson, Vice President at Commonwealth RICOH

If you want to check out the webinar and/or download a copy of the slides, click here.  And, look out for the Winter 2017 survey coming to the Complex Discovery site in January!  Of course, we’ll remind you when it’s live, so no worries… :o)

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Was Spoliation Intentional? Court Will Let Jury Decide: eDiscovery Case Law

In Cahill v. Dart, No. 13-cv-361 (N.D. Ill. Dec. 2, 2016), Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

Case Background

In this case involving state claims for false arrest and malicious prosecution and a federal claim for violation of the Fourth Amendment, the plaintiff was initially arrested on December 15, 2011 by police officers with the Cook County Sheriff’s Office, for driving on a suspended license.  He was transferred to the lockup for processing and patted down by one of the officers, who claimed that he saw the plaintiff drop a small, tissue-wrapped, white package to the floor which turned out to be cocaine.  The plaintiff denied that he dropped the package and denied that he was ever in possession of cocaine, but was charged with possession based on the officers’ accounts.

There were surveillance cameras present and the plaintiff’s criminal defense attorney acted quickly after the arrest to attempt to obtain all video footage of his client’s time at the lockup, sending a subpoena to the Sheriff’s Office and also the County legal department.  A lieutenant with the Sheriff’s Office also took action to preserve the video, submitting a hold request shortly before the video was scheduled to be destroyed.  Despite that, the video was initially thought to have been destroyed, but some of it was preserved, but only after the package had already been dropped.  After viewing the video, the Assistant Cook County State’s Attorney handling the case concluded that the state would not be able to prove the charges against the plaintiff and dismissed the charges. The plaintiff then brought this lawsuit.

In his Motion for Sanctions for Spoliation of Evidence, the plaintiff contended that the defendants had a duty to preserve the entire video footage and intentionally failed to do so because the video would have proven his innocence, by showing that someone other than him dropped the cocaine.  The plaintiff’s motion proposed sanctions ranging from default judgment to an adverse inference instruction, a prohibition on defendants’ use of certain evidence and attorney fees related to the filing of the motion.

Magistrate Judge Cox held a hearing on the motion and heard from numerous witnesses, including James Collins, the technician who had provided a copy of the video.  In her Report and Recommendation, Judge Cox concluded that (1) Defendants were under a duty to preserve the evidence; (2) their allowing the video to be destroyed was grossly negligent, though not intentional based on the evidence presented; (3) Cahill “suffered substantial prejudice” from the loss of this “essential” evidence; and (4) a sanction was appropriate, which was determined to be to bar Defendants “from making any arguments or presenting evidence stating that the lost portion of the videotape showed Plaintiff dropping cocaine on the Maywood Lockup floor, including, but not limited to, Collins’s notes or any testimony from Collins relating to what he saw on the video other than the portion of the video that was preserved.”  In response, the plaintiff filed timely objections, arguing that the sanction Judge Cox recommended was insufficient to counter the prejudice he will suffer from the loss of video that he says would have shown someone else dropping the cocaine.

Judge’s Ruling

Judge Lee indicated that the defendants proposed that the jury should be informed simply “that only a portion of the video exists,” and each party should then be allowed to present “their theory of what is on the missing video”, but that suggestion was at odds with Judge Cox’s Report and Recommendation.  So, “having conducted an independent review”, Judge Lee adopted Judge Cox’s Report and Recommendation “with modifications”, concluding that, “at the very least, the jury should be informed that the video is missing because Defendants failed to fulfill their duty to preserve it.”

As for whether the plaintiff was entitled to the adverse inference instruction he seeks, Judge Lee stated that “[a]lthough the Court disagrees with Judge Cox that Cahill presented no evidence of intent, the question is a close one.”  Because “evidence not directly tied to the fate of the video could nevertheless illuminate Defendants’ intent regarding the video”, Judge Lee decided that “that the best course is for the jury to decide the question of intent.”

As a result, Judge Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

So, what do you think?  Should juries be left to decide whether spoliation of evidence is intentional?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Today’s the Day to Hear Experts Comment on the State of eDiscovery Business Confidence: eDiscovery Trends

Last week, we covered results from the ACEDS and Complex Discovery Fall 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  There’s even a Canadian breakdown (which sort of sounds like Canadian bacon when you say the words out loud) here.  Today, you can attend a webinar to hear experts comment on the results of the survey and their thoughts about the state of eDiscovery business in general!

This time, there were 113 total respondents to the survey, which is over 100 respondents for the second straight quarter.  Continued sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, kCura and Women in eDiscovery and new Canadian sponsor Commonwealth Legal (not to mention us here at CloudNine) has helped continue to keep the number of respondents high.

At 1:00 pm ET today (12:00 pm CT, 11:00 am MT, 10:00 am PT), ACEDS will be hosting the webinar (sponsored by CloudNine) regarding the survey.  During this one hour presentation and discussion led by ACEDS Executive Director Mary Mack, expert panelists will share and discuss the results of this quarterly survey. The discussion will feature eDiscovery leaders including:

  • George Socha, Co-Founder of EDRM and Managing Director at BDO Consulting;
  • Eric P. Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI;
  • Zach Warren, Editor in Chief of Legaltech News;
  • David Horrigan, E-Discovery Counsel and Legal Content Director at kCura;
  • Jennifer Johnson, Vice President at Commonwealth Legal

And me, of course.  We will not only take a look at this survey in general, we will also break down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends.

Click on the link here to register for the webinar.  Hope to see you there!

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Sanctioned for Spoliation of Physical Evidence, But Not ESI: eDiscovery Case Law

In Reed v. Kindercare Learning Centers et. al., No. 15-5634 (W.D. Wash., Nov. 17, 2016), Washington District Judge Benjamin H. Settle (yes, that’s his real name!) granted the plaintiff’s motion for discovery sanctions with respect to spoliation of physical evidence in the form of the facility where the plaintiff worked, but denied the plaintiff’s motion with regard to spoliation of ESI.

Case Background

In this disability discrimination case, the plaintiff had previously filed a Motion to Compel production of documents, which had been granted by the court (with certain limitations). After the defendants did not comply with the order, the plaintiff filed a motion for sanctions as well as a motion to compel entry upon land to inspect the facility where the plaintiff worked.  The plaintiff argued that, after she served the defendants with a notice of entry upon land to inspect the center where the plaintiff had worked, the defendants closed the center without notice and informed the plaintiff that the center had closed and that an inspection would not be possible, eventually informing the plaintiff that the fixtures/furniture were removed from the center and an inspection would not be possible, offering another center with a similar layout as an alternative.

The plaintiff also argued that Defendants “(a) failed to secure relevant email accounts prior to destruction; (b) searched for email and other records for the first time in response to this motion; and (c) possess dozens of relevant documents that were never produced or listed on a privilege log.”

The defendants filed a response to the motion for sanctions and also filed a motion for clarification or reconsideration of the granted motion to compel.

Judge’s Ruling

With regard to the request for the Court to clarify or reconsider its order based on the scope of the production and the deadline for production, Judge Settle, in denying the request, stated that “Defendants do not show a manifest error of law and, at most, submit new evidence that could have been brought to the Court’s attention earlier. Defendants previously argued, without support, that the requested production would not be proportional to the needs of the case. The Court dismissed this argument because it declined to evaluate proportionality in the absence of actual evidence. Thus, the fact that production may be disproportionate to the needs of the case is not an issue the Court will reconsider.”

With regard to the request for sanctions regarding spoliation of physical evidence (i.e., the center where the plaintiff had worked), Judge Settle stated “These facts show that Defendants have acted in at least a grossly negligent, irresponsible and cavalier manner with regard to the Notice of Entry upon the Lakewood center. Accordingly, the Court finds that an adverse instruction may be appropriate. The language of any instruction will be determined after Reed collects evidence from KinderCare’s other centers because, at this time, the Court is unable to properly weigh the prejudice Reed has suffered.”  Judge Settle also granted the plaintiff’s motion to inspect two other defendant locations, rejecting the defendant’s objection that the motion was untimely.

With regard to the request for sanctions for spoliation of ESI, Judge Settle stated that “[w]hile Defendants could have implemented better retention policies and more actively searched for electronically stored information, Reed has failed to show that Defendants have spoiled any evidence. In fact, Defendants have recently discovered and produced a relevant employee file.”

So, what do you think?  Was the Court’s argument for denying the ESI spoliation claim sufficient?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Importance of Early Data Assessment: eDiscovery Best Practices

Why do we have a picture of Santa Claus for an eDiscovery blog post about early data assessment?  Read on.

In the Fall 2016 eDiscovery Business Confidence Survey conducted last month, over a third of all respondents cited Increasing Volumes of Data as expected to be most impactful to the business of eDiscovery over the next six months.  With more and more data to manage, understanding what you have in that data as early as possible has become more important than ever as you attempt to plan the budget for your upcoming discovery efforts.

Knowing how much data you have in gigabytes (GB) or terabytes (TB) that may be subject to litigation isn’t enough to accurately estimate the number of files you have.  As we’ve discussed before, the number of files in each gigabyte can vary widely.

Why is that important?  The more files you have, the more files you potentially have to review.  With review costs estimated to be between 70-80 percent of all eDiscovery costs, a lot more files to review can drive up eDiscovery costs significantly.  Wouldn’t it be better to know early in the case how many files you have?

That’s where early data assessment comes in.  The ability to assess your data early enables you to better estimate your eDiscovery costs, so that you can decide whether to settle or litigate and also so that you can plan resources if you do decide to litigate.

In addition to determining the number of files that you have, it’s also beneficial to determine the expanded size of your collection after processing (so that you can estimate costs for storing or hosting that collection) to determine how many different types of files you have and how many files and data volume is comprised by each file type.  Also, whether any of the files are exception files, such as corrupt or password protected files.  Those files can take a lot of time to address, adding costs to the eDiscovery process.

Want more?  It’s also important to determine how many emails and attachments you have, how many domains those emails represent and also how many email conversations are encompassed with those emails.  And, the timelines for your email collection, so you can identify potential gaps in your collection.

Early data assessment can provide all of that information to you at the outset of litigation.

Here’s the best news: it doesn’t have to cost anything to perform that early data assessment.  CloudNine is offering free early data assessment reporting to provide your organization with valuable information to help shape its litigation strategy.  Consider it an early holiday present this season!  You’re welcome, and happy holidays!

I told you to read on, right?  :o)

So, what do you think?  Do you perform assessment of your data early in the litigation life cycle?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Orders Defendant to Produce Additional ESI Responsive to 78 “Unopposed” Search Terms: eDiscovery Case Law

In Venturdyne, Ltd. d/b/a Scientific Dust Collectors v. Carbonyx, Inc., d/b/a Carbonyx Carbon Technologies, et. al., No. 14-00351 (N.D. Ind., Nov. 15, 2016), Indiana District Judge John E. Martin ordered the defendant to produce additional ESI to the plaintiff to be retrieved via 78 “unopposed” search terms that neither party objected to during negotiation over the plaintiff’s original list of 126 search terms.

Case Background

In this breach of contract case, the parties agreed to use keywords to search the defendant’s electronically stored information (ESI) and the defendant turned over sample emails related to the case to help determine what keywords would be appropriate.  On February 25, 2016, the plaintiff’s counsel sent the defendant’s counsel a list of 126 keywords to use for retrieving ESI.  On March 10, the defendant’s counsel sent an email to the plaintiff striking 20 search terms from the list and, on April 28, the plaintiff’s counsel responded by voluntarily removing 28 additional terms, leaving 78 terms and also objecting to 7 of the 20 terms deleted by the defendant.  In all, neither party objected to 78 of the original 126 search terms during this negotiation.

The plaintiff’s counsel sent the defendant’s counsel follow-up emails on May 6, May 24, June 3, June 13, and June 30 and the defendant’s counsel did not respond to any of those emails, causing the plaintiff to file a Motion to Compel on July 12.

Judge’s Ruling

While noting that “Carbonyx contends that it has produced ‘more than 12,000 pages of documents, consisting of emails and their attachments, as well as paper documents’”, Judge Martin also noted that “these documents were generated using the search terms ‘Scientific Dust Collectors’ – the name Venturdyne does business under – and ‘Scientific.’” (those terms happen to be redundant, by the way, as the second term would would include the results of the first term – just sayin’)  But, he also noted that “Carbonyx’s assertion that the documents it has already produced…are completely responsive is not convincing.”

As a result, Judge Martin stated:

“Accordingly, Carbonyx must produce documents flagged by the 78 unopposed search terms contained in DE 48-7. Those terms appear ‘reasonably calculated to lead to discovery of admissible evidence’ in that the terms were based on sample emails related to this case and the parties already eliminated many generic words like ‘money.’”

Judge Martin also noted that “the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”  So, he ordered the plaintiff to file an itemization of its costs and fees, including attorney’s fees, incurred in making the Motion to Compel by November 21, with the defendant to file a response by December 5 and the plaintiff to file a reply to that by December 12.

So, what do you think?  Would the ruling have turned out differently if the defendant had continued to work with the plaintiff?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Supreme Court Gives Samsung an Early Christmas Present – For Now: eDiscovery Case Law

We almost made it the entire year without an update on the ubiquitous Apple v. Samsung case.  Thanks to the U.S. Supreme Court, this long lasting case isn’t done yet.

As reported earlier this week by Greg Stohr of Bloomberg Law (Supreme Court Orders New Look at Apple’s Award From Samsung), the Supreme Court, in a unanimous opinion (8-0) told a federal appeals court to take another look at a $399 million award won by Apple from Samsung for copying the design of the iPhone.

Writing for the court, Justice Sonia Sotomayor said Apple might not be entitled to Samsung’s entire profit on 11 infringing smartphones. She told a federal appeals court to consider whether Apple should be able to recoup profits attributable only to particular components, a question which SCOTUS did not address.  Sotomayor said the lower court’s approach “cannot be squared with the text” of the federal patent statute. Design patents, which cover the ornamental look of an object rather than any functional aspect, are increasingly used by tech companies and makers of consumer products to differentiate their products from competitors. Believe it or not, SCOTUS hadn’t considered design patents since disputes involving spoon handles in the 1870s and carpets in the 1890s.  Technology has advanced a bit since then.

Google, Facebook Inc., EBay Inc. and Hewlett Packard Enterprise Co. said in filings that a victory for Apple would allow owners of design patents to extract unfair rewards on products that can have hundreds or even thousands of features.

We’ve covered Apple v. Samsung several times over the years, from our first post covering an adverse inference sanction that Samsung received in 2011 for failing to turn off “auto-delete” of emails after the case began to “patentgate” and the resulting $2 million sanction for an inadvertent disclosure made by Samsung’s outside counsel firm to our most recent post last year where we reported yet another stay that Samsung received in having to pay damages.  This case has it all: two tech titans going at it for 5+ years (so far) and eDiscovery failures as well.  Gotta love it.

In a year where it had to scrap production of its Note 7 device because of exploding batteries (a new report just released by a manufacturing tech company claims the design of the battery was too “aggressive”), Samsung does at least get some good news before the end of the year.  At least for now.

So, what do you think?  Will this case ever end?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Finding Categorical Privilege Log to Be Inadequate, Court Orders Plaintiff to Provide a Metadata Log: eDiscovery Case Law

In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., No. 15-01300 (D. S.C., Nov. 3, 2016), South Carolina District Judge J. Michelle Childs determined that the plaintiff’s categorical Privilege Log was inadequate and ordered the plaintiff to provide to the defendant a metadata log for all documents withheld or redacted, affidavit(s) from the person(s) with knowledge regarding the privileged third party and common interest parties and a list of anticipated litigation(s) for the documents withheld on the basis of work product protection.

Case Background

In this case where the plaintiff alleged breach of contract and breach of fiduciary duty over the substantial decrease in value of trusts associated with use of the plaintiff’s insurance program, the defendant initially moved for an order compelling the plaintiff to produce a more-detailed “document-specific privilege log of redacted and withheld documents” which pre-date February 14, 2014 and also requested that “with respect to any work product claims,” the plaintiff should provide information regarding “what litigation it anticipated, when the litigation was anticipated, the facts that caused . . . [Plaintiff] to anticipate the litigation, and how that anticipation drove the creation of the withheld document.”

In responding, the plaintiff argued it submitted a categorical privilege log, which the parties “expressly” agreed was acceptable and that the parties had agreed that privilege logs did not need to identify redacted documents in which the asserted privilege was evident on the face of the document.  The defendant then changed the requested relief in its Motion to Compel to request a metadata log of each withheld document, including dates of communications, date created, document custodian, to/from/cc information, and subject lines for emails and certain specific communications from a key third party.  The plaintiff agreed to produce the metadata log, but was adamant that all communications with a key third party were protected by the attorney-client privilege.  The defendant accepted that proposal in part, but asked the court to require production of the agreed-upon information earlier than the plaintiff proposed, review certain communications from the key third party to determine if privilege had been properly withheld and require the plaintiff to attach to the list of anticipated litigations “an affidavit stating the point in time it anticipated such litigation, the facts that caused it to anticipate such litigation and describe the categories and types of documents that were created in anticipation of such litigation”.

Judge’s Ruling

Judge Childs noted that “To comply with the requirements set forth in Rule 26(b)(5)(A), a party seeking protection from producing documents must produce a privilege log that ‘identifies each document withheld, information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document’s general subject matter.’”  With that in mind, Judge Childs ruled:

“Upon review of the Categorical Privilege Log in the context of Defendant’s complaints, the court finds that Plaintiff’s log does not allow Defendant or the court to test the applicability of the attorney-client privilege and/or work product protection as to each document sought to be withheld. Accordingly, the court concludes that Plaintiff’s Categorical Privilege Log is inadequate.”

As a result, Judge Childs ordered the plaintiff to provide to the defendant on or before November 18, a metadata log for all documents withheld or redacted dated before February 14, 2014, affidavit(s) from the person(s) with knowledge regarding the privileged third party and common interest parties and a list of anticipated litigation(s) for the documents withheld on the basis of work product protection dated before February 14, 2014.

So, what do you think?  Are categorical privilege logs generally sufficient enough to communicate to parties what it being withheld and why?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

It May Be FALL, But eDiscovery Business Confidence Is On The RISE: eDiscovery Trends

The results are in from the ACEDS and Complex Discovery Fall 2016 eDiscovery Business Confidence Survey, which was conducted last month and (as was the case for the Winter, Spring and Summer surveys) the results are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  So, to avoid redundancy, I will focus on trends over the past four surveys (for the most part) to see how the responses have varied from quarter to quarter.

Again this quarter, I’ll be participating in a panel discussion webinar moderated by Mary Mack of ACEDS with George Socha of BDO Consulting, Eric Mandel of Indicium Law, Zach Warren of Legaltech News, David Horrigan of kCura and Jennifer Johnson of Commonwealth Legal also participating as panelists where we will discuss these trends and others.  Click here to register for that webinar.

Over a Hundred Respondents Again: This time, there were 113 total respondents to the survey, which is over 100 respondents for the second straight quarter.  Continued sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, kCura, Women in eDiscovery and new Canadian sponsor Commonwealth Legal (not to mention us here at CloudNine) has helped continue to keep the number of respondents high.

Canadians Are People Too: Speaking of Canada, one change from past surveys was to break out the Canadian responses from the US responses in the results, where nearly twenty percent (19.5%) of the respondents were from our neighbors to the north.  Oh, Canada!  Rob broke out the Canadian responses here.

Respondents Still Diverse, But Slightly Less So: Of the types of respondents, 57 out of 113 were either Software and/or Services Provider (33.6%) or Consultancy (16.8%) for a total of 50.4% of respondents as some sort of outsourced provider (just over half of total respondents).  Law firm respondents were still in a strong second place with 28.3%.  Corporation respondents was the only other category over 10% this time.  Here’s a graphical representation of the trend:

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Over Half of Respondents Consider Business to Be Good: Over 56% (56.6%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 6.2% rating business conditions as bad.  Last time, those numbers were 47.6% and 13.7% respectively.  Does this reflect a seasonal dip during the summer – the only quarter where less than half of the respondents were bullish on business?  We’ll see.  Here is the trend for the four quarterly surveys this year:

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Almost Everyone Still Expects eDiscovery Business Conditions to be as Good or Better Six Months From Now: Almost all respondents (94.7%) expect business conditions will be in their segment to be the same or better six months from now (slightly down from last quarter’s 97.0%).  Revenue (also at combined 94.7% for the same or better) and profit (combined 89.4%) were improved over last quarter.  Here is the profits trend for the four quarterly surveys this year:

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Increasing Volumes of Data is Clearly Considered to be the Most Impactful to eDiscovery Business: Increasing Volumes of Data (33.6%) was clearly considered to be the most impactful to the business of eDiscovery over the next six months, followed by Budgetary Constraints (a distant second at 24.8%).  Increasing Types of Data (15.9%) rose to third, Lack of Personnel and Data Security (both at 9.7%) tied for fourth and Inadequate Technology (6.2%) dropped back to dead last (where it has been in all but the last survey).  The graph below illustrates the distribution across the four quarterly surveys this year.

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The clearly notable trend here is the continued rise in the importance of Increasing Volumes of Data.  With data doubling in organizations every 1.2 years, it’s clear that the issue of data discovery is becoming more important than ever.

Continued Increase in “Rank and File” Responses: Last time, we noted a virtual even split among type of respondents (based on role), with Executive Leadership, Operational Management and Tactical Execution almost an even split.  The latter two categories continues to rise, at 73.5% of total respondents (with Executive Management down to 26.5%, less than half of the first two surveys).  Here’s that breakdown, quarter by quarter:

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Canada Even More Bullish: Across the board, the respondents from Canada were even more confident in the state of eDiscovery business than the group overall.  As an example, here are the expectations for revenue for the next six months for all respondents and for Canadian respondents:

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Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check it out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.